National Consumer Disputes Redressal
Shiv Garg vs Lufthansa German Airlines & Ors. on 24 April, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 28 of 2008 (Against order dated 17.09.2007 in Appeal No.199/2004 of the State Commission, Rajasthan) Shiv Garg ........Petitioner Vs. Lufthansa German Airlines & Ors. ......Respondents BEFORE: HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Petitioner : Mr.R.N.Pareek, Advocate For the Respondent : Ms.Sandhya Kohli, Advocate for R-1 Mr.V.C. Jha, Advocate for Ms.Sonia Sharma, Advocate for R-2. Pronounced on 24th April, 2012 ORDER
PER VINEETA RAI, MEMBER Shiv Garg, Petitioner herein vide this revision petition has challenged the order of the State Consumer Disputes Redressal Commission, Rajasthan (hereinafter referred to as the State Commission) in Appeal No.199/2004 decided in favour of Lufthansa German Airlines (Respondent No.1) and two others viz. Manager, Tower Assistance Ltd. (Respondent No.2) and Oriental Insurance Co.Ltd. (Respondent No.3).
In his complaint before the District Forum, Petitioner/Complainant had contended that he had purchased a foreign travel and medical insurance policy after paying a premium of Rs.2,338/- from Respondent No.3 for the period from 13.06.1999 to 17.07.1999 with regard to loss of baggage, delay or health problems etc. Petitioner while travelling on 25.06.1999 on Respondent/Airlines lost his bag containing passport, foreign currency etc. for which a complaint was filed at Dan Hague, Holland. A baggage irregularity report was also lodged on 15.07.1999 on his arrival at Delhi Airport and again letters containing particulars were sent to Respondent/Airlines vide letters dated 26.05.2000 and 07.03.2001. However, despite this Petitioner did not receive any proper response nor the missing bags. Due to loss of baggage containing valuables, Petitioner had to undergo great discomfort and financial loss which included getting a fresh passport and losing a diamond necklace worth Rs.3,35,800/- and foreign currency worth US$ 1750. Petitioner thereafter filed a formal complaint vide his letter dated 07.04.2001 along with copies of the FIR etc. Petitioner also filed a complaint before the District Forum on 11.07.2001 and requested that he be compensated Rs.4,78,800/- along with interest @ 18% per annum as per following details :
(i) Amount spent on making new Passport, Rs.23,500/ documents etc.
(ii) Loss of diamond necklace Rs.,3,35,800/-
(iii) Mental agony & harassment Rs.20,000/-
(iv) Litigation cost Rs.5,500/-
Total = Rs.4,78,000/-
The above contentions were denied by Respondents.
Respondent/Airlines denied that two bags were missing as alleged by the Petitioner and stated that Respondent/Airlines had no knowledge regarding any missing report filed in Holland. However, it was admitted that one bag (out of 5 booked) was reported missing when the Petitioner arrived at Delhi Airport for which a baggage irregularity report was filed. The missing bag was traced and reached Delhi 17.07.1999 and the Petitioner was informed immediately on 18.07.1999. Subsequently, a representative of the Petitioner collected the same and did not lodge any other complaint thereafter till 07.03.2001.
Respondent/Airlines further stated that even though aberrations can occur when millions of pieces of baggage are handled each year all over the world, Respondent/Airlines was very diligent in tracing the baggage from three locations i.e. Chicago, Frankfurt and Delhi and restored the same within two days of Petitioners filing the missing report on 15.07.1999. Respondent/Airlines also stated that the Petitioner kept quiet for several months and suddenly wrote to it on 17.03.2001 inquiring about his complaint dated 15.07.1999 which was not understandable since the matter had been settled and the missing luggage delivered to him. Respondent/Airlines further contended that the as per Article VIII of the Conditions of Carriage (Passenger and Baggage) of Respondent/Airlines, a passenger is not allowed to carry money, jewellery, precious metals, negotiable, papers, securities or other valuables, business documents etc. in the checked luggage. Therefore, even if there was any loss from inside the bag, Respondent/Airlines was not liable to make good this loss.
The District Forum after hearing both parties and considering the evidence on record partly allowed the complaint by stating that since as per terms of the insurance policy, loss of passport and bag was covered, Petitioner was entitled to get US $ 250 for loss of passport and US$ 1000 for loss of checked in baggage from the Respondents. However, it ruled that since loss of cash/currency and diamond necklace was not insured, the claim for Rs.3,35,800/- is not admissible. The relevant part of the order of the District Forum reads as follows:
All said and done, the baggage of the complainant has been lost due to the fault of Lufthansa Airlines, which contains passport and other articles which were insured. Hence, complainant is entitled to be compensated for such loss as per the terms of the policy to the tune of U.S. Dollar 1000/- and U.S. Dollar 150 which was the value on the date of the incident from the opposite parties, which amount opposite parties are directed to pay within 2 months. If they failed to do so, then the complainant shall be entitled interest @ 10% per annum on the Indian currency equivalent to above said foreign currency. There is no justification for awarding any other compensation.
Aggrieved by this order, Petitioner/Complainant filed an appeal before the State Commission which dismissed the same by observing as follows:
Complainant has represented that the bag contained valuables including diamond necklace which caused a loss of Rs.3,35,800/- which he was entitled to be compensated for by the opposite parties. We are agreeable with the finding of the learned Forum that the complainant was not entitled to be compensated for such loss, as per terms 5(c) clear direction has been issued that passenger shall not keep cash or valuables in the checked baggage, and if he does so then the carrier can refuse to carry such baggage.
According to this term if the complainant has lost valuables, then he should not have kept the same in the checked in baggage. Apart from this, the onus to prove that he had kept such valuables in the baggage was on the complainant. The price of diamond necklace has not been shown and the complainant could not prove that he had kept diamond necklace in the bag. Complainant admits that he had filed complaint in Holland on 25.06.1999 and at Delhi Airport on 15.07.2000. Complainant was clearly asked whether he gave particulars of diamond necklace in the report. If it was given in the report then the Bench could have been shown the same.
Complainant was even asked to file the copy of the report filed by him but the same was not filed by the complainant.
As per above deliberations the complainant has not been able to prove that he had kept diamond necklace in the lost bag and besides as per the terms of ticket he should not have kept the necklace in the checked in baggage.
Hence, the present revision petition.
Learned Counsel for both parties made oral submissions.
Counsel for Petitioner while admitting that Petitioner had not declared and insured the diamond necklace and other valuable items, stated since the checked baggage was X-rayed the Airlines staff would have come to know that it contained a diamond necklace and other valuables and in all probability this is how it was stolen from his baggage. Counsel for Petitioner further contended that Respondent never traced or returned the bag and denied Respondents contention that it was delivered to Petitioners representative two days after it was reported missing. Respondent was not able to show any receipt or authorization acknowledging that the bag had been received by the Petitioner and no affidavit was also filed to this effect.
According to the learned Counsel for Petitioner, the District Forum allowed the claim of the Petitioner to the extent of US$ 1250 in respect of his lost passport and baggae but erred in not ordering further compensation for loss of diamond necklace and other valuables by taking the shelter of Condition 5(c) of Article VIII of the Conditions of Carriage (Passenger and Baggage) of the Respondent/Airlines. It was further contended that since Respondent/Airlines had after conducting an X-ray which showed all the contents of the baggage including the diamond necklace still permitted it to be checked in, it cannot now take the plea that it will not compensate the Petitioner for the loss. Counsel for Petitioner, however, confirmed that the Insurance Company (Respondent No.3) has settled the claim amounting to US$ 1250 as directed by the District Forum.
Counsel for Respondent on the other hand pointed out the terms and conditions mentioned on the ticket, specifically Article XV Liability for Damage, which reads as under:
3(a) The liability of carrier for delay, damage, destruction or loss of baggage is limited as follows:
(i) In international carriage and irrespective of whether the convention is applicable or not, (a) to the sum of 250 Fresh gold francs or its equivalent (US equivalent approximately $ 20.00) per kilogram for checked baggage and (b) to the sum of 5,000 French gold francs or its equivalent (US equivalent approximately $ 400.00) for unchecked baggage per passenger.
Counsel for Respondent/Airlines further stated that Article VII of the Conditions of Carriage (Passenger and Baggage) clearly stipulates that a passenger shall not include in his checked baggage, money, jewellery precious metals, negotiable papers, securities or other valuables, business documents or samples. In the instant case, Petitioner kept his valuables and cash/currency in the checked in baggage which was in violation of the above terms and conditions and the Respondent/Airlines is not liable for the same. Counsel for Respondent while admitting that one bag had been misplaced again reiterated that it was handed over to the Petitioners representative two days after the missing report was filed and the fact that the Petitioner kept quite till 15.07.2000 and only thereafter wrote that the claim had not been settled indicates that he has not come with clean hands. Further, Respondent/Airlines wrote several letters to the Petitioner asking for more specific information about his claim which was not received, so the claim was treated as closed. As per the terms and conditions quoted earlier, there is no liability on the part of the Respondent/Airlines to compensate the Petitioner for the valuable items since the articles were being carried by the Petitioner contrary to the instructions of the Respondent/Airlines.
Respondent/Insurance Company (United India Ins.Co. Ltd.) stated that it was not liable to settle any claim for loss of the diamond necklace and foreign currency because these items were not insured under the policy taken by the Petitioner.
We have heard learned Counsel for both parties and have gone through the evidence on record. Admittedly, one of the 5 bags which was checked in by the Petitioner on Respondent/Airlines flight did not reach Delhi Airport on the day when the Petitioner arrived. However, we are not inclined to accept Petitioners contention that it was never delivered to him till date. If this was the case, Petitioner would not have kept quiet from 15.03.1999 when a baggage irregularity report was filed at Delhi Airport till 05.04.2001 when he wrote to the Respondent/Airlines regarding his lost baggage. The Fora below had therefore, rightly not accepted Petitioners contention that the bag was never returned to him. Regarding Petitioners contention that he should be compensated for the loss of diamond necklace and other valuables also, we agree with the State Commission that since these were carried in violation of the terms and conditions of the passenger ticket as stated earlier and were not insured, the Respondents were not liable to compensate the Petitioner for this loss. Petitioners contention is that Respondent/Airlines should not have accepted the checked in baggage containing the necklace and other valuables which was revealed in the X-ray. We are not convinced with this contention because the baggage is X-rayed for security considerations by security staff and Respondent/Airlines do not scan the baggage to see whether valuables are being carried or not.
In view of the above reasons, we find no infirmity in the order of the State Commission and uphold the same. The revision petition is therefore, dismissed. No costs.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/